A place to find news updates, legal analysis, and all official documents related to the various constitutional challenges to the Patient Protection and Affordable Care Act (as amended by the Health Care and Education Reconciliation Act of 2010)

Monday, November 1, 2010

The importance of tomorrow

There certainly is a great deal at stake politically in tomorrow's midterm elections. It may also be that the constitutionality of the ACA hangs in the balance as well. Of course, nothing in a technical legal sense will be resolved tomorrow, even if a handful of states adopt "health care freedom" laws (which, as essentially nullification ordinances, have no legal significance). But the election results are apt to affect the outcome of the ACA litigation in two ways. First, there seems little doubt that the federal courts generally, and the Supreme Court in particular, are influenced by the views of the other powerful institutions in our constitutional system. Thus, if the House and Senate are controlled by majorities that are hostile to the ACA, that will leave judges greater room to rule in favor of the states. Second, and perhaps more important, if tomorrow is a landslide for Republicans, and the narrative that takes hold (particularly in elite circles) is that the Democrats lost power due largely to the ACA--for instance, if attention is paid to those House members who lost their seats allegedly because of that vote--then the election may well be seen, at least in large part, as a rejection of the ACA by the American people. To the extent this occurs--regardless of its accuracy as a matter of political science--it would create an environment in which it was far easier for the Supreme Court to invalidate the ACA. For it would reduce the degree to which the Court would be attacked politically for such a decision, increase the likelihood that such a decision would be supported by the public, and diffuse some of the media and academic criticism.

In short, 18 months from now, we may well look back at tomorrow as the single most important moment in the states' constitutional challenges to the ACA.